Ref: NHRC’s order of November 5, 1996 on encounter killings in Andhra Pradesh. (PDF file attached).

The Human Rights Forum (HRF) is a citizens’ forum established with the objective of working for protection of Constitutionally guaranteed/internationally recognised rights of the people and for the right of the people to propose and strive for new rights not yet recognised in national or international law. The right to a wholesome and dignified life is the touchstone for the rights that may be aspired for. We are concerned with, among other things, ensuring that the agencies of the State, like the police, adhere to the law in the discharge of their duties. We believe that citizens must be tried and punished, if found guilty, only in accordance with a procedure laid down by the law of the land and no one can be subjected to extra-judicial liquidation by the State. That would be contrary to Articles 14 and 21 of the Indian Constitution.

We were pleasantly surprised on learning that the NHRC, in response to a petition filed by the Guntur district unit of the HRF on 11-7-2002 in respect of 19 “encounters” in Kurnool and Guntur districts enquired into the matter and awarded compensation of Rs five lakh to each of the families of 13 persons killed by the police. Though coming after more than a decade this relief will go some way in providing succour to the families who have already lost much.

However, reparations do not fulfill requirement of the law. For that to happen crimes against citizens must be fully investigated and those engaging in criminal acts must be punished by law. In the instant case, the NHRC has, while ordering reparations to the next of kin declared unambiguously that these were extra-judicial executions. It must therefore follow up on this by recommending to the Andhra Pradesh government that a case of culpable homicide amounting to murder has to be booked against the police who have taken part in these wanton and deliberate killings. This is a basic requirement of the law.

The HRF is of the view that in encounter cases, following upon the very report of the police officer who has committed the killing and who thereupon goes to the local police station to give his report, a case of culpable homicide amounting to murder and other appropriate sections of the IPC has to be booked against him as well as all members of the police party, if any, that he was part of. Further, the case has to be investigated fairly and impartially by an agency as independent as possible of the perpetrators of the offence; and the final decision whether life has been taken or injury has been caused by them in permissible circumstances that would exonerate them has to be that of a competent Court and not that of the executive, namely the police themselves, much less the killer himself.

While saying this, we are not indulging in any novel interpretation of the law. In fact, the NHRC while dealing with a complaint on encounter killings in Andhra Pradesh issued clear directions to the AP government on November 5, 1996 stating as much. The relevant portion of the Commission’s recommendations on that occasion are:

“i) As the information furnished to the Police officers in charge of the respective police stations in each of these cases is sufficient to suspect the commission of a cognizable offence, immediate steps be taken to investigate the facts and circumstances leading to the death of the PWGs, in the light of the elucidation made in this order.

ii) As the police themselves in the respective cases are involved in perpetrating encounter, it would be appropriate that the cases are made over to some other investigating agency — preferably the State CID. As a lot of time has already been lost, we recommend that the investigation be completed within four months from now. If the investigation results in prosecution, steps for speedy trial be taken. We hope compensation would be awarded in cases ending in conviction and sentence.”

These directions were considered to be of general applicability and accordingly were communicated by the then NHRC Chairperson Justice MN Venkatachalaiah in his DO letter dated 29 March 1997 to all Chief Ministers of States to be followed in all cases where deaths were caused in police encounters. It was clearly stated that if an encounter death is not justified as having been caused in exercise of the legitimate right of private defence, or in proper exercise of the power of arrest under Section 46 of the Criminal Procedure Code (CrPC), the police officer causing the death would be guilty of the offence of culpable homicide. Whether the causing of death in an encounter was justified as falling under any of the two conditions could only be ascertained by proper investigation.

Regretfully, this lawful procedure is not being followed in Andhra Pradesh. The practice of the police in AP, as in other parts of the country is to register only a single FIR. Principally, it relates to Section 307 of IPC relating to attempt to murder by the now deceased along with various other sections of the penal code. The contention of the police is that this single FIR is sufficient for recording both the offences, namely the offence of attempt by the deceased on the life of the police and the offence of killing of the deceased by the police. This is an untenable practice that is plainly contrary to legal procedure.

Every such incident must be registered as two crimes under Section 307 and 302 of IPC respectively. The first is a crime of attempt to murder by the now deceased and the other a crime of culpable homicide amounting to murder by the police purportedly in self-defence. The burden of establishing a preponderance of probabilities in favour of the exception relating to self-defence to a competent court rests upon the police personnel who have fired causing death. Investigation must be done into the case of killing by the police in purported self-defence. To come to the conclusion that there is no sufficient reason to investigate is to accept at face value the killer’s version. This is impermissible in our view since it would not meet the requirement of just, fair and reasonable procedure under Article 21 (Right to Life) of the Constitution.

We once again urge the NHRC to direct the government of Andhra Pradesh to file cases of culpable homicide amounting to murder and other appropriate sections of the IPC against all members of the police responsible for all 19 cases of “encounters”. Importantly, these cases must be investigated by an agency as independent as possible of the perpetrators of the offence. We therefore urge upon the NHRC to also recommend to the AP government that the Central Bureau of Investigation be asked to take up investigation. This would be fully in accordance with the spirit of the NHRC’s 1996 order.